Federal Court of Australia

Bilal v Ampol Australia Petroleum Pty Ltd [2026] FCA 1382

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal is dismissed:

(a)    pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) by virtue of the applicant’s failure to attend at a part of a hearing relating to his proposed appeal; and

(b)    by reason of the applicant’s failure to duly prosecute the application, specifically by failing to attend at a part of a hearing relating to his proposed appeal.

2.    The respondent has liberty to apply to make an application for an order as to costs, such liberty to be exercised:

(a)    not later than 19 August 2026; and

(b)    by filing an affidavit that specifies the grounds on which costs are sought and, if a lump sum is proposed, the amount of that sum and the manner of its calculation.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    This is an application for leave to appeal from an interlocutory judgment of a single Judge of the Court made in action NSD 1187 of 2025: Bilal v Ampol Australia Petroleum Pty Ltd (Discovery) [2026] FCA 591. I dismissed the application at a case management hearing on 11 August 2026. I gave oral reasons on that day. I now provide written reasons to the same effect as the oral reasons.

2    On 7 July 2026, the Court made orders progressing the application for leave to appeal to a hearing (Orders). The Orders required that the applicant file and serve any amended application for leave to appeal, and any further affidavit evidence relied upon in support of that application. There was then an order for the respondent to file and serve affidavit evidence in response. Paragraph 5 of the Orders was as follows:

On or before 28 July 2026, the applicant is to file and serve:

(a)    any affidavit evidence in reply; and

(b)    any written submissions in support of the application for leave to appeal.

3    The hearing was set down to be heard on 24 August 2026.

4    On 31 July 2026 at 5:08 pm the respondent’s lawyer sent an email to my chambers, marked MFI 1. By that email, the respondent informed the Court that the applicant had not filed any written submissions. The email stated that earlier that day the solicitor had written to the applicant stating that it was for him to prosecute his application and to clearly articulate and explain the errors of the primary judge.

5    The respondent’s solicitor stated that the respondent could not prepare informative submissions, due to be filed on 4 August 2026. The solicitor said that the respondent and the Court would be required to follow the applicant’s oral submissions in real time by reference to a book of documents during the hearing, and that the respondent would be asked to provide responsive submissions without prior notice of what the applicant’s submissions might be.

6    The applicant is a litigant in person. At the first case management hearing on 7 July 2026, the applicant was provided guidance by the Court. In circumstances that I will explain, the applicant was not present in the Court when oral reasons for my decision were provided.

7    On 11 August 2026, the Court held a case management hearing at the respondent’s request. Both parties were in attendance at the commencement of that hearing via video link. At that hearing, it was not disputed that the applicant had not responded to the respondent’s questions raised in the correspondence marked MFI 1.

8    The applicant submitted that paragraph 5 of the Orders presented him with a choice as to whether or not to file any affidavit evidence in reply or written submissions because the word “any” appeared in the order. For the purpose of what follows, I accept the applicant’s submission that the order was phrased in a way that might reasonably be interpreted as permitting him to file written submissions but leaving it open for him not to do so. Accordingly, I make no finding that the applicant was in default in that respect.

9    However, the applicant had not responded to the respondent’s correspondence to provide that explanation. I explained to the applicant that that was unacceptable, and that he should have responded to the respondent so that the respondent and the Court would not hear for the first time at the case management hearing his reason for not filing the submissions. That is especially so given that the applicant was copied into the correspondence to the Court. The time for him to avoid the case management hearing arose at the time that that correspondence was sent, some 11 days prior.

10    I explained to the applicant that it was my intention that he file written submissions so that both the Court and the respondent would not be put to the task of understanding his submissions and his position during the course of the hearing itself. I considered that to be especially appropriate given that the amended application for leave to appeal contains 10 grounds in respect of the application for leave, and there are 12 proposed grounds of appeal. When asked why he had not responded to the respondent’s correspondence, the applicant said that that was a matter for him. He declined to explain why he had not replied.

11    There then was an exchange between the bench and the applicant in which the applicant asserted that he did not wish to file written submissions.

12    He said that he was too unwell to do so.

13    I expressed the view that I was not satisfied on the material before me that the applicant was too unwell to prepare written submissions, including because he had prepared and provided written materials. In expressing that view I had regard to the circumstance that the applicant had prepared and filed the amended application for leave to appeal.

14    The applicant then asserted that I should disqualify myself on the grounds of apprehended bias. He sought to have the matter stood down so that he could prepare and file a written application. When asked to articulate what the grounds for that application would be, he declined to do so and asserted that he should be permitted to put that application on in writing. I explained to the applicant that I needed to make a decision about whether or not I should proceed to make any orders that day, and invited him again to articulate the grounds on which he asserted that I should recuse myself. The applicant made a submission to the effect that I should recuse myself on the basis of the conduct of this matter. I have understood his submission in that respect to refer to the conduct of the whole of the matter, including exchanges with the bench and the parties on 7 July 2026, the case management hearing on 11 August 2026, and the Court’s decision to bring the matter on for a case management hearing in response to the respondent’s email.

15    The relevant test for the disqualification of a judge on the grounds of apprehended bias was explained by the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. Gleeson CJ, McHugh, Gummow and Hayne JJ held that where a question arises as to the independence or impartiality of a judicial officer, the “governing principle” requires that the officer be disqualified if “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind” in determining a question they are required to decide (at [6]). Applying the Ebner principle involves a two-stage test. First, the circumstances which might lead a judge to decide a case on other than its legal or factual merits must be identified. Second, the alleging party must articulate a logical connection between those facts and circumstances and an apprehension that the judge might decide the case other than on the merits (at [8]).

16    In this proceeding, I have dealt firmly with the applicant, made orders that are adverse to his wishes, provided guidance to him and required him to support his assertion that he was too unwell to put on written submissions. Those circumstances did not, without more, satisfy the two-stage test for apprehended bias. Accordingly, I declined to stand the matter down or to otherwise adjourn the matter in order to enable the applicant to file a written or more formal application founded on apprehended bias. I emphasised that if the oral submissions in respect of the asserted grounds for disqualification had raised any arguable basis for disqualification, then I would not have hesitated to stand the matter down to enable the applicant to elaborate on his brief submission.

17    I then asked the applicant whether or not he wished to have the opportunity to file or put on some evidence so as to persuade me that he was not in a position to prepare written submissions. The applicant became agitated. He asserted that he was not well, raised his voice and terminated the video link.

18    Whilst in session, the Court attempted (unsuccessfully) to contact the applicant by the mobile telephone number provided in connection with this proceeding as his telephone address for service so as to secure his participation for the remainder of the hearing. The applicant did not respond.

19    In the circumstances described, I was not satisfied that the matter could or should proceed to a hearing. I was satisfied that the applicant has been afforded an opportunity to persuade the Court (by evidence) that he was unwell such that he could not provide written submissions, or such that he might be granted any other relief founded on any medical condition that he might suffer from.

20    In this proceeding, the Court exercised its appellate jurisdiction under s 25 of the Federal Court of Australia Act 1976 (Cth). The matter was allocated to a single judge for case management and to determine the application for leave to appeal.

21    Section 25(2B)(bb)(ii) provides that:

(2B)    A single Judge (sitting in Chambers or in open court) may:

(bb)     make an order that an appeal to the Court be dismissed for:

    …

(ii)    failure of the appellant to attend a hearing relating to the appeal; …

22    The circumstances fulfilled that condition and the power to dismiss the application was therefore enlivened. In exercising the discretion I had regard to the circumstances that the applicant is a litigant in person, that legal proceedings can be stressful, that the applicant appeared to be in an agitated state and that he had asserted that he was unwell.

23    However, those circumstances did not provide a sufficient explanation for the applicant’s refusal to respond to the Court a number of times when asked whether or not he sought an opportunity to put on material so as to satisfy the Court that he was too unwell to prepare written submissions. I considered that a party who terminates an attendance at a hearing in respect of an appeal could also be found to have failed to duly prosecute the appeal.

24    I had regard to the prejudice to the applicant should I dismiss this application by virtue of his non-attendance. I made two observations in that regard.

25    First, the application for leave to appeal was in relation to orders made by the primary judge that are interlocutory in nature and that relate matters of practice and procedure. The applicant is not precluded from appealing from any final judgment in the matter before the primary judge, including on the basis that the interlocutory orders made at the pretrial stage were affected by error. Accordingly, this is not the only opportunity that the prospective appellant would have to complain of error affecting the orders that were the subject matter of this application.

26    Second, my order dismissing the appeal for failure to attend at a hearing is itself interlocutory, and can therefore be varied or set aside upon a later application. On such an application, the applicant might be in a position to persuade a judge that he had an adequate and excusable explanation for terminating his attendance at the hearing. Accordingly, I considered that the prejudice that might be suffered by the applicant by an order dismissing this proceeding is outweighed by the obvious case management considerations favouring an order dismissing this application.

27    I took into account the circumstance that the Court interrupted the applicant from time to time. And that the applicant might have entertained a bona fide belief that such conduct gave rise to an apprehension of bias. However, I did not consider that that those factors in of themselves provided a sufficient reason not to dismiss the application.

28    The applicant will be given an opportunity to be heard on the respondent’s subsequent application for costs.

Associate:

Dated:    18 September 2026